SUNITY CHANDRA Vs. NIL RATAN

JUDGEMENT

(1.) The suit, out of which this appeal arises, was for specific performance of a contract for sale of one brick-built one-storeyed house at premises No. 38/J/4 Maharaja Road, Dhakuria, now P.S. Jadavpur along with prayers for recovery of khas possession of the property and some other prayers. On 11-4-1973, there was an agreement between the plaintiff-respondent and the defendant-appellant for release of the suit-property by the plaintiff, within two months from the date of the execution of the agreement, from the State of West Bengal, to which the property was mortgaged. The terms of the agreement were that if the defendant-appellant had the property released from the State of West Bengal and had made over true copies of the relevant documents including the deed of release and had allowed inspection of the original documents to the plaintiff-respondent, when demanded, to show the marketable title of the defendant to the property, the deed of sale in respect of the property was to be executed by the defendant in favour of the plaintiff within three months of the release of the property and of making over of the true copies of the documents to the plaintiff. At the time of execution of the agreement, Ext. 1, and amount of Rs. 6001/- was paid as earnest money by the plaintiff to the defendant as the property was mortgaged with the State of West Bengal for that amount of Rs. 6001/-. The terms were that the property would be sold for a sum of Rs. 38,000/-.

(2.) The case of the plaintiff-respondent was that though he was ready and willing to perform his part of the contract and had also given subsequently to the defendant through his Advocate a further sum of Rs. 1000/- on 13-12-1973, the defendant did not execute the Kobala in respect of the property in favour of the plaintiff, even though time for execution of the sale deed was extended at the request of the appellant by several letters. As such, the suit was filed for specific performance of the contract for sale, recovery of possession of the property and for some other reliefs.

(3.) The case of the defendant-appellant was that on 18-7-1973, the property was released by the State of West Bengal and a deed of release was executed. In spite of his best attempt, the defendant could not get the deed of release earlier. The defendant was all along ready and willing to complete the transaction. On 19-7-1973, he made over to the plaintiff a copy of the deed of release and other documents. The plaintiff violated the terms and conditions of the agreement. Long after the time to complete the transaction, the plaintiff suggested a change in the deed of conveyance by a letter dated 29-12-1973. The plaintiff had never offered the balance of the consideration-money to the defendant. It was the plaintiff who deferred the completion of the transaction on flimsy grounds.